LEGAL HISTORY: ENGLISH LEGAL HISTORY Professor Donahue May 8: 11:00 a.m. -- May 21: 3:30-4:30 p.m   INSTRUCTIONS
	This is a take-home exam. It will be distributed on May 8 (the last class) at 10:50 a.m. You may, if you wish, also pick it up in my secretary's office (Hauser 518) any time after the last class. The exam should be returned to my secretary, Jody Clineff}, in Hauser 518, any time before 4:30 p.m. on May 21. (If you can't find her, put the exam under my door (Hauser 512). Please note that this is different from the usual procedure. You do not turn in the exam to the Registrar's Office. You may not discuss this exam with anyone between 11:00 a.m. on May 8 and 4:30 p.m. on May 21. If you have not picked up the exam, you may, of course, discuss the course with anyone who has also not picked up the exam. This is an open-book exam. You may use any materials that you want. The exam is not, however, intended to be a library exercise. You should be able to do it with just the books assigned for the course and your class notes. There is no limit on words, but conciseness will be rewarded and verbosity penalized. One way to be concise is not to recite at length material that was contained in the lectures. By and large, I know that material, and in a take-home exam I can assume that you do too. What I am interested in is your ideas, how you put the material together. If you find yourself writing more than five double-spaced typewritten pages on either question, you're probably writing too much. There are two questions on the exam. The first question has two parts, and you are to answer only one of them. The second question also has two parts, and you are to answer one or the other of them based on which part you have chosen in the first question. The questions will be given approximately equal weight.
	I.
	[Answer either Question I.A. or Question I.B.]
	A.
	Write a commentary on the following passages. Like many historical documents, these assume a basic understanding of the rules and institutions of the period. Your own thought about these documents (this is not necessarily the way in which you should organize the essay) should begin by outlining what those unspoken assumptions are. Then think about the prior and subsequent history of the institutions to which the documents refer. Next ask yourself what this document tells us about "the law" in the three different periods that are involved here: the time of Rikhill and Thirning, the time of Paston and Littleton, and the time of Coke. Finally, ask yourself how the institutions that are expressed or implied in the documents are related to broader social, political and economic developments. Write a coherent essay embodying the results of your analysis.
	RIKHILL'S CASE (c. 1395) Littleton, Tenures, ss. 720-723 ed. and trans. J.H. Baker & S.F.C. Milsom, Sources of English Legal History (London 1986) 67-8
	I have heard say that in the time of King Richard II there was a justice of the Common Pleas called Rikhill,1 living in Kent, who had issue various sons; and his purpose was that his eldest son should have certain lands and tenements unto him and the heirs of his body begotten, and for default of issue remainder to the second son [in tail], and so the third son, and so forth; and because he wanted none of his sons to alienate or make a warranty to bar or hurt the others in remainder, he caused an indenture to be made to the effect that the lands and tenements were given to the eldest son on condition that if he or any of his sons should alienate in fee or in fee tail, then their estate should cease and be void and that the same lands and tenements should then immediately remain to the second son and the heirs of his body begotten, and so on. ... But it seems by reason that all such remainders in the form aforesaid are void and invalid, and that for three causes: 1. William Rikhill, J.C.P. 1389-1407, died in 1407 and was buried in Rochester cathedral. Littleton might have confused him with Thirning C.J. (see [the case] below), though Thirning did not live in Kent. 1. Because every remainder which begins by deed must be in the person to whom the remainder is limited (tayl‚) by force of the same deed, before livery of seisin is made to the person who should have the freehold; for in such a case the birth and existence of the remainder is by the livery of seisin to him that shall have the freehold and such remainder was not to the second son at the time of the livery in the aforesaid case. 2. If the first son alienated the tenements in fee, then the freehold and the fee simple is in the alienee and no one else; and if the donor had any reversion, it would be discontinued by such alienation. How, then, by any reason, can it be that such a remainder shall begin its being and have its birth immediately after such alienation to a stranger, who by the same alienation has a freehold and fee simple? Moreover, if such a remainder were good he might enter upon the alienee, where he had no manner of right before the alienation: which would be absurd (inconvenient). 3. When the condition is that if the eldest son should alienate etc. his estate shall cease or be void, then it seems that after such alienation the donor could enter on the basis of such condition; and so the donor or his heirs ought in such case to have he land, rather than the second son, who had no right before such alienation. And so it seems that such remainders as in the case aforesaid are void. In his commentary on this case (Co. Litt. 377b), Coke draws the lesson `that it is not safe for any man (be he never so learned) to be of counsel with himself in his own case', and ends (Co. Litt. 379b): `In these last three sections our author hath taught us an excellent point of learning, that when any innovation or new invention starts up to try it with the rules of the common law (as our author here hath done), for these be true touchstones to sever the pure gold from the dross and sophistications of novelties and new inventions ... and commonly a new invention doth offend against many rules and reasons (as here it appeareth) of the common law, and the ancient judges and sages of the law have ever (as it appeareth in our books) suppressed innovations and novelties in the beginning, as soon as they have offered to creep up, lest the quiet of the common law might be disturbed.'
	THIRNING'S CASE (c. 1400) Y.B. Hil. 21 Hen. VI, of. 33v, pl. 21
	This may be a garbled recollection of Rikhill's case, or vice versa. Neither has been verified from a contemporary source, though Paston J. seems to speak from personal memory here and would have been in his 20s or early 30s at the time. ...FULTHORPE. Suppose someone gives land in tail on condition that the donee should not discontinue the tail. Is that condition void? I do not think so, because Thirning (who was chief justice here2 gave land to his eldest son on condition that if he alienated it should remain to his younger son, and he made similar remainders to two or three others. 2. William Thirning C.J.C.P. 1396-1413; died in 1413. AYSCOUGH. I think such a gift in tail, with the condition, is good and effectual; for Thirning made the gift with the advice of those who were justices in those times. PASTON. Truly it is not so, and I know well that it was not done by assent of the justices; but he said he would have the gift openly notified in the place, and Hankford3 said he could, but smiled and said that the whole condition was void: and so it seems to me. 3. J.C.P. 1398-1413.
	B.
	Write a commentary on the following quotation. Begin by explaining what the text seems to mean. Then trace, briefly, the prior and subsequent history of the institutions to which it refers. Be sure to include in your account a sketch of the relationship of the institutions you are expounding to broader social, political and economic developments. The end result should be a coherent essay. It need not be organized the way this question is written, but it should include some treatment of each of the suggested issues.
	BERDEN v. BURTON et al. Y.B. Trin. 6 Ric. II, pl. 9, pp. 19-22 (1382) (Ames Foundation, forthcoming)
	A man brought a writ of trespass against Davy Houlgrave and Thomas de Burton and twelve others for his house burnt and broken, his servants beaten and maltreated, twelve oxen and a hundred sheep taken and driven off, and other goods and chattels taken and carried away, and other wrongs etc., to his damage etc. The defendants appeared and denied etc. As to coming with force and arms, not guilty. As to the breaking of the houses, they say that they found the doors open. And because a rent-charge issuing from the same manor was granted to one A., ancestor of Davy, one of the defendants, by the ancestor of the person whose estate the plaintiff had in the same manor, they therefore entered and took the distress. And they asked judgment whether an action would lie for this entry etc., and they put forward a deed of the grant of the rent etc., as if by compulsion of the court, for BELKNAP, C.J. said that the justification pleaded would have been worthless otherwise. And as to this matter the plaintiff offered to aver that the defendants broke his doors, without this, that they found them open, and a day was given in the octave of Michaelmas. And as to the animals taken and driven off, the defendants showed how the plaintiff had an action of replevin pending for the same animals and the same taking (for he counted on the same day and the same place). And they asked judgment whether as to this action of trespass etc. concerning the animals. And, as to the animals, the writ of trespass was abated at once, and the writ of replevin was to remain in full force. And yet the replevin action was brought only against two of the defendants. But BELKNAP, C.J. said that all the others would be discharged by the bringing of replevin against the two men, and he also said that a writ of trespass shall abate in favor of a writ of replevin, but not the contrary, for replevin is in a form of a higher nature and is another kind of action etc. And as to the battery of the servants, the defendants showed how after the taking they drove off the animals, as well they might, and some of the servants who were within [the manor] came after them, and they did not know whether this was in order to replevy the animals or to effect a rescue. And then by certain words which passed between them they clearly realized that their coming was for the purpose of effecting a rescue, and the defendants used force against them. And they asked judgment whether for such an interference an action would lie etc. And it was adjourned, as stated above. And as to the arson of the houses, the defendants showed how after the distress, which was taken in the morning, some of the servants came after the defendants, and others remained inside the manor; thus the burning which was done was by reason of the negligence of the servants inside, who should have watched the fire. And they asked judgment whether etc. And he also showed the court that he came at the third hour with the constable of the town without any more people. Holt (for the plaintiff). We say that they came with a great assembly and multitude of armed men and entered the manor and in the morning before sunrise, broke the doors and then entered the hall and threatened the servants, with the result that the servants were in fear of death and let the fire lie unattended and did not dare to return. Thus it was the fault of the defendants that the manor burned. And we ask judgment etc. Burgh. Now we ask judgment on the writ, for you notice how they have alleged by their writ how we burned their house in fact, and now they have pleaded nothing on that point but show how we were the cause of the burning, in which event they ought to have had an action on their case and not this action. And we ask judgment etc., upon their admission etc. BELKNAP, C.J. I also believe that the writ is improperly framed, for you ought to have brought your special writ upon your case, since it was not their intention to burn them, but the burning happened by accident. Even though it stemmed from their act, still it was done against their will. It is as if you broke my close and entered therein, and my animals went away through this opening and fled, so that I lost them forever; while you know nothing of this, I shall never have a writ of trespass against you alleging that you drove off my animals, but I really think that I shall have a general writ of trespass for breaking my close, with no mention of the driving away of the animals, and everything will be accounted for in the damages for the breaking of the close, for by the breaking of the close all the damage occurred and has been fully effected. And, furthermore, if you break my houses, and you go away, and then other strangers carry off my goods without your knowledge, I shall have a writ of trespass against you for the breaking into my houses etc. and recover everything in damages, as above. But, if you should be knowledgeable or plotting or willingly present when the trespass is done, you shall be adjudged a principal feasor, for in trespass no one is an accessory etc. And then Holt said that they came in the morning with certain assemblies of people, as above, and broke the doors and entered and took some straw and fired it in order to see around them, and the straw, while afire, threw sparks on the ground. Thus they burned etc. BELKNAP, C.J. Now you are speaking to the point, for by the firing of the straw the houses were burned; thus they are as principal feasors. And then a day was given, as above. And in this case it was also agreed that if your house be next to my house and my house is burned and your house as well by the accident of my house, you shall never have a writ against me alleging that I have burned your house, but rather a special writ upon your case. And, also, if I lie in your house and place a candle on the wall, and the candle falls on the straw, so that your house is burned, you shall have a special writ. And later the parties reached an agreement etc.
	II.
	Answer either Question II.A. or Question II.B. If you chose to answer Question I.A., you should answer Question II.B. If you chose to answer Question I.B., you should answer Question I.A.
	A.
	The text of the Statute of Uses (27 Hen. VIII, c. 10 (1536)) follows: "Where, by the common laws of this realm, lands, tenements, and hereditaments be not devisable by testament, nor ought to be transferred from one to another but by solemn livery and seisin, matter of record, writing sufficient made bona fide, without covin or fraud; yet nevertheless divers and sundry imaginations, subtle inventions, and practices have been used whereby the hereditaments of this realm have been conveyed from one to another by fraudulent feoffments, fines, recoveries, and other assurances craftily made to secret uses, intents, and trusts, and also by wills and testaments sometime made by nude parole and words, sometime by signs and tokens, and sometime by writing, and for the most part made by such persons as be visited with sickness, in their extreme agonies and pains, or at such time as they have scantly had any good memory or remembrance; at which times they being provoked by greedy and covetous persons lying in wait about them, do many times dispose indiscreetly and unadvisedly their lands and inheritances; by reason whereof, and by occasion of which fraudulent feoffments, fines, recoveries, and other like assurances to uses, confidences and trusts, divers and many heirs have been unjustly at sundry times disherited, the lords have lost their wards, marriages, reliefs, herriots, escheats, aids for making their sons knights and to marry their daughters, and scantly any person can be certainly assured of any lands by them purchased, nor know surely against whom they shall use their actions or executions for their rights, titles and duties; also men married have lost their tenancies by the curtesy, women their dowers, manifest perjuries by trial of such secret will and uses have been committed; the king's highness hath lost the profits and advantages of the lands of persons attainted, and of the lands craftily put in feoffments to the uses of aliens born, and also the profits of waste for a year and a day of felons attainted, and lords their escheats thereof; and many other inconveniences have happened, and daily do increase among the king's subjects, to their great trouble and inquietness, and to the utter subversion of the ancient common laws of this realm; for the extirpating and extinguishment of all such subtle practised feoffments, fines, recoveries, abuses and errors heretofore used and accustomed in this realm, to the subversion of the good and ancient laws of the same, and to the intent that the king's highness or any other his subjects of this realm shall not in any wise hereafter by any means of inventions be deceived, damaged or hurt by reason of such trusts, uses, or confidences: it may please the king's most royal majesty that it may be enacted by his highness, by the assent of the lords spiritual and temporal and the commons in this present parliament assembled, and by authority of the same in manner and form following; that is to say, that, where any person or persons stand or be seised or at any time thereafter shall happen to be seised of and in any honours, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments, to the use, confidence or trust of any other person or persons, or of any body politic, by reason of any bargain, sale, feoffment, fine, recovery, covenant, contract, agreement, will, or otherwise, by any manner means whatsoever it be, in every such case all and every such person and persons and bodies politic that have or hereafter shall have any such use, confidence or trust in fee simple, fee-tail, for term or life or for years, or otherwise, or any use confidence or trust in remainder or reverter, shall from henceforth stand and be seised, deemed, and adjudged in lawful seisin, estate, and possession of and in the same honours, castles, manors, lands, tenements, rents, services, reversions, remainders and hereditaments, with their appurtenances, to all intents, constructions, and purposes in the law of and in such like estates as they had or shall have in use, trust or confidence or in the same; and that the estate, right, title, and possession that was in such person or persons that were or shall he hereafter seised of any lands, tenements, or hereditaments to the use, confidence, or trust of any such person or persons, or of any body politic, be from henceforth clearly deemed and adjudged to be in him or them that have or hereafter shall have such use, confidence, or trust, after such quality, manner form and condition as they had before, in or to the use, confidence or trust that was in them. [Other sections make specific application of this principle and establish a number of exceptions. The act closes with three sections adequately summarized in their titles:] "§ 12. Wills made before 1 May 1536 shall be effectual as before the statute. "§ 13. No fines for alienation, reliefs or herriots payable to the king till after 1 May 1536 under the statute. "§ 14. No fines, reliefs or herriots to private persons on the executing of any estate under this act before 1 May 1536." Write a general essay on the place of the statute of Uses showing not only the role that it played in the overall development of the land law but also how it fits into the constitutional and social history of medieval and early modern England.
	B.
	When we discussed the development of the personal actions in the central royal courts, we said that it was more difficult to fit this development into the overall social and constitutional framework of medieval and early modern English history than it was to fit the development of the land law into the same framework. Write an essay arguing that the development of the personal actions can no more be divorced from the social and constitutional framework within which it occurred than can the development of the land law.